SC for fewer death sentences

Pushes For Objectivity & Less Harsh Alternative Before Extreme Penalty

New Delhi: Naysayers to death penalty can take heart. A 30-year-old SC judgment laying down “rarest of rare case” guidelines on imposition of death penalty may soon see further tightening that could make award of capital punishment an absolute rare phenomenon.

In a recent order, the Supreme Court said judges, while awarding death penalty in mechanical consonance with the 1980 ‘Bachan Singh’ judgment, appear to have lost sight of vital ingredients—“the lesser alternative (life imprisonment) is unquestionably foreclosed” and “objective fairness standards”. These two ingredients must essentially be fulfilled by judges before awarding death penalty, but have not been complied with diligently in the recent past, said a bench of Justices S B Sinha (since retired) and M K Sharma.

Extremely concerned by the varying interpretation of the “rarest of rare case” guidelines laid down in Bachan Singh judgment, the apex court said time had come for an attempt towards deciphering a common view on this to usher in “some objectivity to the precedent on death penalty which is crumbling down under the weight of disparate interpretations”. “We may come across instances where the case may belong to the rarest of rare category, but in court’s view the ‘objective fairness standards’ necessary to be met before death penalty can be awarded have not been complied with diligently,” the bench said.

The judgment came in a case in which the apex court upheld the life sentence awarded to Mohd Farooq Abdul Gafur and others in the 1999 murder attempt on Shiv Sena leader Milind Vaidya. Though Vaidya escaped with injuries, the bullets fired by the assailants killed three. It took note of the concern of legal commentators that while the rich and powerful never got the extreme penalty, “it is invariably the marginalised and destitute who suffer extreme penalty ultimately”.

To support the need for further tightening of the death penalty system, Justice Sinha said if a person was given life imprisonment and later found to be innocent, he could be released from prison though the state would not be able to compensate the time he lost in prison. “Such a reversal is not possible where a person has been wrongly convicted and sentenced to death. The execution of the sentence of death in such cases makes miscarriage of justice irrevocable. It is a finality which cannot be corrected,” he said.

The court was aware of the swinging fortunes of an accused in the three-tier justice delivery system, where a trial court verdict is reversed by the high courts and in turn the SC upturns an HC judgment. “Swinging fortunes of the accused on the issue of determination of guilt and sentence at the hands of the criminal justice system is something which is perplexing for us when we speak of fair trial,” Justice Sinha said expressing his views on death sentence.

(Source: Times of India
19th August 2009
Dhananjay Mahapatra | TNN)